20:0743(86)AR - Justice INS and AFGE Local 2724 -- 1985 FLRAdec AR

[ v20 p743 ] 20:0743(86)AR
The decision of the Authority follows:

20 FLRA No. 86
U.S. DEPARTMENT OF JUSTICE,
IMMIGRATION AND NATURALIZATION SERVICE
Agency
and
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 2724
Union
Case No. 0-AR-980
DECISION
This matter is before the Authority on an exception to the award of
Arbitrator Charles T. Schmidt filed by the Union under section 7122(a)
of the Federal Service Labor-Management Relations Statute and part 2425
of the Authority's Rules and Regulations. The Agency filed an
opposition. /1/
According to the record before the Authority, this case arose as the
result of the reassignment of the grievant. On November 7, 1983,
management proposed the suspension and reassignment of the grievant for
conduct unbecoming a border patrol officer. On December 19, 1983, the
Union filed an unfair labor practice charge, as to which there was
subsequently a refusal to issue a complaint, claiming in general that on
November 7, 1983, the Agency unilaterally changed working conditions and
requesting specifically as redress that the reassignment of the grievant
be held in abeyance. On December 29, 1983, the grievant was advised
that as a final decision on the proposed disciplinary action he was
being permanently reassigned. Thereafter, pursuant to the terms of the
parties' agreement, arbitration was directly invoked by the Union in
behalf of the grievant challenging that decision. The Arbitrator stated
the initial issue to be whether the grievance was precluded from
consideration under the Statute by the unfair labor practice charge. In
this respect the Arbitrator noted that although the charge was broadly
framed, the charge was clearly drawn to reflect and specifically relate
to the grievant's reassignment for misconduct and the date given by the
Union as when the charge arose was the date of the proposed action
against the grievant. Consequently, he ruled that the substance of the
issue raised in the grievance was substantially the same as the issue
raised by the earlier-filed unfair labor practice charge. The
Arbitrator further found with reference to the "discretion of the
aggrieved party" language of section 7116(d) of the Statute /2/ that
although the charge was formally filed by the Union, the filing was by
election of the grievant. Accordingly, as his award the Arbitrator
dismissed the grievance as being precluded by the Statute.
In its exception the Union essentially maintains that the grievance
was not precluded by section 7116(d) and that therefore the award is
contrary to the Statute. Specifically, the Union argues that no issues
of the charge and the grievance were the same and that the grievant was
not the aggrieved party as to the charge. The Authority finds that the
Union has failed to establish that the award finding the grievance
precluded is contrary to section 7116(d) of the Statute.
Section 7116(d) effectively provides that when in the discretion of
the aggrieved party, an issue has been raised under the unfair labor
practice procedures, the issue subsequently may not be raised as a
grievance. In Department of Defense Dependents Schools, Pacific Region
and Overseas Education Association, 17 FLRA No. 135 (1985), petition for
review filed sub nom. Overseas Education Association, NEA v. FLRA, No.
85-1420 (D.C. Cir. July 10, 1985), the Authority summarized the
requirements for section 7116(d) grievance preclusion: (1) the issue
which is the subject matter of the grievance is the same as the issue
which is the subject matter of the unfair labor practice; (2) such
issue was earlier raised under the unfair labor practice procedures;
and (3) the selection of the unfair labor practice procedures was in the
discretion of the aggrieved party. In terms of this case, as has been
noted, the Arbitrator determined that all the elements of section
7116(d) had attached. With respect to the first element, the Arbitrator
primarily concluded that while broadly framed, the charge was clearly
drawn to specifically relate to the reassignment of the grievant for
misconduct. Thus, he ruled that the issue which was the subject matter
of the grievance was substantially the same issue which was the subject
matter of the unfair labor practice charge, and the Authority finds that
the Union in its exception fails to establish otherwise. See
Headquarters, Space Division, Los Angeles Air Force Station, California
and American Federation of Government Employees, Local 2429, 17 FLRA No.
131 (1985). The Union in its exception also disputes that the selection
of the unfair labor practice procedures was in the discretion of the
grievant as the aggrieved party. The Authority has held with respect to
the use of "party" that this element of section 7116(d) attaches when
the choice of particular procedures has been made by the aggrieved party
regardless of who is formally the filing party. DoDDS, Pacific Region.
In this regard, as has been noted, the Arbitrator observed that the
general allegations of the charge, in addition to being drawn to
specifically relate to relief for the grievant, also provided the date
of receipt by the grievant of the proposed action as the date the charge
arose. For these reasons the Arbitrator essentially found that the
grievant was the aggrieved party and that both the Union's filing of the
charge and invoking of arbitration was in a representative capacity in
behalf of the grievant. Because the charge was indisputably filed
first, the Arbitrator ruled that in terms of section 7116(d), this
constituted the choice and selection of the unfair labor practice
procedures by the grievant, and the Authority finds that the Union's
exception provides no basis for finding such determination to be
contrary to the Statute. See Federal Bureau of Prisons and American
Federation of Government Employees, Local 3690, 18 FLRA No. 40 (1985).
Accordingly, the Union's exception is denied.
Issued, Washington, D.C., November 25, 1985
(s)---
Henry B. Frazier III, Acting
Chairman
(s)---
William J. McGinnis, Jr., Member
FEDERAL LABOR RELATIONS AUTHORITY
--------------- FOOTNOTES$ ---------------
/1/ In addition, the Agency has also filed a motion to strike a
document submitted by the Union in support of its exception. Because no
basis has been established for excluding that document, the motion is
denied and the document has been considered.
/2/ Section 7116(d) of the pertinently provides:
(I)ssues w